One of the ugly truths in high school and college athletics is that there is some number of sexual predators working as coaches. Through long hours of practices and competition, these individuals gain their players' trust and use their positions to either sexually harass or abuse the young athletes under their supervision.

One of the ugly truths in high school and college athletics is that there is some number of sexual predators working as coaches. Through long hours of practices and competition, these individuals gain their players' trust and use their positions to either sexually harass or abuse the young athletes under their supervision. The conduct of these coaches is surely criminal, and yet in some cases, the conduct of the people overseeing them is equally outrageous - and actionable.

An example is Toplisek v. Canon McMillan School District [2010 U.S. Dist. LEXIS 110425]. Starting in 2005 and continuing into 2006, Brittany Toplisek, a member of her Canonsburg, Pa., high school's softball team, was subjected to a series of sexual advances by a 25-year-old volunteer softball coach, Justin Bedillion. Bedillion eventually had sexual intercourse with the then-15-year-old Toplisek both in the school and during or following school functions off school premises.

On Feb. 13, 2006, Toplisek's parents met with Linda Nichols, then the school's principal, and Michele Moeller, the varsity softball coach, to discuss the parents' concerns about the inappropriate relationship. Bedillion was later arrested and convicted of sexual offenses against Toplisek and a 13-year-old student at the high school in the Court of Common Pleas of Washington County (see Maier v. Canon McMillan School District, 2009 U.S. Dist. LEXIS 74342 [W.D. Pa. Aug. 20, 2009]), and soon after began a 3- to 6-year prison sentence.

As a result of Bedillion's misconduct, Toplisek filed a lawsuit against Canon McMillan School District, Nichols, Moeller and Nick Bayat, the school superintendent. After the lawsuit was filed, Toplisek alleged that school employees and students made inappropriate comments to her, and she reported the comments to school officials who, contrary to school policy, failed to take disciplinary action. Toplisek also complained of being treated differently than other members of the softball team. She alleged that the coaching staff refused to provide her with training available to other team members because her lawsuit had created a "hostile situation." In addition, Toplisek complained of unequal disciplinary treatment (she was suspended from school for fighting with another softball player, while the other player was not).

As a result of continuing harassment, Toplisek filed a second lawsuit, alleging a First Amendment retaliation claim pursuant to Section 1983 of the United States Constitution. In her complaint, Toplisek argued that in filing her first lawsuit against the school and its employees, she was engaged in a constitutionally protected activity. Toplisek sought monetary relief including punitive damages, attorney's fees and costs, pre- and post-judgment interest, delay damages, and damages for emotional distress. She also sought reformation of her school records and letters of good reference.

The second set of defendants - Canon McMillan, Nichols, Moeller and Bayat, plus Steven Moskal, an assistant varsity coach who was named interim head coach when Moeller took a leave of absence - filed a motion to dismiss all claims against the individual defendants in their official capacity. Toplisek, they argued, failed to state a claim for retaliation upon which relief could be granted (a defense essentially saying that even if the plaintiff is right, the defendants shouldn't have to do anything, possibly because an element is missing from the complaint that could direct the court toward the proper relief). Further, they argued, the lawsuit against the individual defendants was redundant, since they and the school district were also being sued in their official capacity.

The United States District Court for the Western District of Pennsylvania began by examining Toplisek's First Amendment retaliation claim. As the court noted, Section 1983 creates a cause of action against anyone who, acting under color of state law, deprives an individual of rights secured by the Constitution or by federal statute. To prevail on a Section 1983 claim of retaliation for filing complaints, the court held that Toplisek must show that 1) she was engaged in a protected activity; 2) school officials took adverse action sufficient to deter a person of ordinary firmness from exercising her rights; and 3) a causal connection existed between the protected activity and the adverse action.

Retaliation claims are often built on circumstantial evidence, because of the time that can elapse between (using Title VII terminology) the employee's constitutionally protected actions and the employer's retaliatory actions. A display of unusually suggestive "temporal proximity," as this theory is called, can be sufficient to persuade a court of the causal connection. Failing that, a plaintiff also can prove causation by presenting evidence of a pattern of antagonistic conduct against her, subsequent to her protected conduct.

Using this test, the court concluded that Toplisek had sufficiently shown that she was entitled to relief. First, the court found that her federal lawsuit was protected activity. The court found that there were several instances of adverse action, such as refusal to train her, exclusion from the softball team, disparate discipline and verbal abuse. Finally, the court found that there was sufficient temporal proximity and a pattern of antagonistic conduct to overcome dismissal. The factual and legal claims were separated, and Toplisek alleged enough facts to raise a reasonable expectation that discovery could reveal evidence of the necessary elements of her Section 1983 claim.

The court dismissed Toplisek's claims against school officials acting in their official capacities, as the Eleventh Amendment bars this. However, the court determined that there were two theories of liability under which Toplisek could sue school officials in their individual capacities. Under the first theory, school officials could be sued as policy makers if it were shown that they, with deliberate indifference to the consequences, established and maintained a policy, practice or custom that directly caused the constitutional harm. The second theory would provide for individual and personal liability if Toplisek could show that supervisors participated in violating her rights, that they directed others to violate them, or that they had knowledge of and acquiesced in subordinates' violations. In support of Toplisek's claim, the court noted that she was able to show that she informed school officials of the inappropriate conduct and comments, and they did nothing to discipline the offending individuals.

In reviewing the court's decisions, school and athletic administrators should remember three important points. First, going back to the first lawsuit, involving the sexual misconduct of Bedillion, they should recognize the legal duty to protect students and athletes under their care from sexual harassment. If they hear or suspect any sexual misconduct between a coach and an athlete, they should act quickly to investigate the misconduct. If the allegations are shown to be true, the police should be notified and the teacher or coach should be dismissed.

Second, school and athletic officials should remember that the students are the victims in these cases. No matter how voluntary the relationship may be, teachers and coaches are in a position of authority and are taking advantage of these students. Therefore, no matter how popular the teacher or coach is, the student should not be victimized twice.

Third, even though they may be acting in their official capacities, school and athletic administrators can still be sued for individual and personal liability if it is shown that they violated the protected rights of the abused student.

Legal Action

One-year limits on scholarships are a "blatant price-fixing agreement" between the NCAA and its member institutions. So says Joseph Agnew, a former defensive back at Rice University who lost his full scholarship his senior year and has sued the NCAA, alleging antitrust violations. In the lawsuit, Agnew argues that "by unlawfully agreeing not to offer multi-year athletics-based discounts, the NCAA and its member institutions have ensured that student-athletes who are injured or who simply do not meet the school's expectations can be cut from a team and their scholarships terminated."

Agnew, a highly recruited Texas high school player, chose Rice "in large part as a result of the sizable athletics-based discount promised to him by the university," according to the lawsuit. But after Todd Graham, the coach who recruited him, left the program, Agnew struggled to find playing time and suffered shoulder and ankle injuries that required surgery. He was cut from the team his junior year, and his scholarship was rescinded. Though he appealed the university's decision and regained his scholarship for his junior year, Agnew did not play on the team. He was forced to pay tuition and expenses his senior year. His other options, the suit states, would have been to find another college or university willing to offer him a scholarship, or to abandon his education. "It should be noted that the award of athletic scholarships on a one-year, renewable basis is the more typical approach taken within higher education for talent-based and academic scholarships in general," NCAA spokesperson Bob Williams told The New York Times.

New York's Court of Appeals will soon decide whether Dr. Anoop Kapoor had a legal duty to yell "Fore" before striking fellow golfer Dr. Azad Anand with a shot from the rough in 2002, leaving him blind in one eye. A Nassau County judge in 2007 dismissed Anand's initial lawsuit, finding he took on the primary risk by golfing. A midlevel court agreed, concluding in 2009 that Anand, who was standing a minimum of 50 degrees off the line of Kapoor's intended shot when he was struck, was "not in the foreseeable danger zone" and his friend had no duty to yell the warning. Judges during the late November 2010 appellate hearing seemed inclined to agree, as well - Judge Theodore Jones, referring to a bad shot, said, "It is my understanding that a shank is never foreseeable and never intended." Anand's lawyer, Steven Cohn, responded that, "If you shank the ball on a regular basis, it could be foreseeable."

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